JUDGMENT
1. The petitioner in this case is a workman who is aggrieved by the order of the Commissioner of Labour, Bombay, refusing to make a reference of the dispute to the Labour Court under section 10(1) read with section 12(5) of the Industrial Disputes Act, 1947 (“the Act”)
2. The petitioner is a workman. He was working with the Respondent No. 3 as a Turner for a period of about 9 years. He raised an industrial dispute on the ground that this services were terminated by the management. He served a demand for his reinstatement with full back wages and continuity of services with effect from the date of the alleged termination i.e. 31.7.1989 on 5th August, 1989. As the management did not concede to his demand, he approached the Conciliation Officer under the Industrial Disputes Act, 1947, who took up the conciliation proceedings.
3. The case of the petitioner was that he was working with the Respondent No. 3 for more than 9 years. After he joined the National Labour Union, he was threatened by the management. His further case was that he was forced to sign a letter of resignation and to accept the sun of money by way of settlement of account. His case was that his services had been illegally terminated by the management by obtaining his resignation forcibly. All the allegations of the workman were denied by the management.
4. The case of the management was that the workman himself tendered his resignation and accepted at his legal dues in full and final settlement. No settlement could be arrived at between the workman and the management. The Conciliation Officer, therefore, submitted a failure report to the Government under section 10(1) read with section 12(5) of the Industrial Disputes Act, 1947. The Commissioner of Labour, Bombay, in exercise of the powers of the appropriate Government, by his order dated 16.2.1990 refused to make a reference for the reason that the workman had tendered his resignation vide letter dated 31.7.1989 and also accepted h is legal dues in full and final settlement vide receipt of the same date. The above order, refusing to make a reference, has been challenged by the workman in this writ petition.
5. The learned counsel for the respondents submits that the appropriate Government has the power under section 12(5) of the Act to consider whether to make a reference or not. In the instant case, on the perusal of the case stated in the report of the Conciliation Officer, it being satisfied that the workman had resigned from service, it was justified in refusing to make a reference of the dispute. The contention of the learned counsel, in other words, is that in view of the satisfaction of the appropriate Government in regard to the submission of the resignation etc., no industrial dispute in fact existed and, as such, the question of reference did not arise.
6. I have carefully considered the submission of the learned counsel for the respondents. I, however, find it difficult to accept this because the entire controversy in this case resolves around the genuineness of the resignation letter or in other words, the question whether the resignation was voluntary or forced one. If it was voluntary than it was not a case of termination but if it was forcibly obtained as alleged, it cannot be termed as a resignation and it will be a case of termination, giving rise to an industrial dispute. It was not open to the Government to take upon itself and decide this dispute and to hold that it was not a case of termination but a case of termination but a case of resignation. From the facts of the case, it is evident that an industrial dispute did exist. So far as the merit of the dispute is concerned, it is not open to the Government to go into the same once an industrial dispute does exist. Then it is incumbent on the part of the Government to make a reference. It cannot itself decide the merit of the dispute. It is well settled by the decision of the Supreme Court in M. P. Irrigation Karmachari Sangh v. State of M. P. and Ram Avtar v. State of Haryana .
7. In that view of the matter, I find that the Commissioner of Labour was not justified in refusing to refer the dispute to the Labour Court. Accordingly, I set aside the order dated 16.2.1990 and direct the Commissioner of Labour to refer the dispute to the Labour Court under Section 10(1) read with section 12(5) of the Act.
8. In the result, this writ petition is allowed.
9. Under the facts and circumstances of the case, I make no order as to costs.